Citation Nr: 0731760
Decision Date: 10/09/07 Archive Date: 10/23/07
DOCKET NO. 05-02 236 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for entitlement to death benefits as a
surviving spouse.
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran had active service from May 1944 to March 1946
and from November 1947 to July 1962. He died in December
1995.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a March 2004 determination by the above
Department of Veterans Affairs (VA) Regional Office (RO) that
new and material evidence had not been submitted to reopen
the appellant's claim for death benefits as the surviving
spouse of the late veteran.
FINDINGS OF FACT
1. A claim for entitlement to death pension benefits as the
veteran's surviving spouse was denied by the RO in August
1999, and was not appealed; that was the last final denial as
to that issue on any basis before the present attempt to
reopen the claim.
2. The evidence received since the August 1999 decision is
new and raises a reasonable possibility of substantiating the
underlying claim, and therefore is material evidence.
3. The veteran and the appellant were legally married from
April 1958 to the date of his death in December 1995.
4. The appellant and the veteran, by mutual consent, did not
live continuously together from the date of their marriage to
the date of the veteran's death, and with resolution of
reasonable doubt in her favor, there was no intent on the
part of the appellant to desert the veteran.
CONCLUSIONS OF LAW
1. New and material evidence has been presented to reopen
the claim to recognize the appellant as the surviving spouse
of the veteran for the purpose of entitlement to non-service-
connected death pension benefits. 38 U.S.C.A. § 5108 (West
2002 & Supp 2007); 38 C.F.R. § 3.156 (2007).
2. The appellant is the veteran's surviving spouse for the
purpose of entitlement to non-service-connected death pension
benefits. 38 U.S.C.A. §§ 101(3), 5107(b) (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.50, 3.53, 3.102 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Pertinent Laws and Regulations
As a timely appeal of the previous adverse action was not
submitted, the Board concludes that the RO's August 1999
decision is final based on the evidence then of record.
38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103.
However, the law and regulations provide that if new and
material evidence has been presented or secured with respect
to a claim which has been disallowed, the claim may be
reopened and the former disposition reviewed. 38 U.S.C.A.
§ 5108.
It should be noted that the regulation pertaining to the
definition of new and material evidence has been amended.
(See 38 C.F.R. § 3.156(a)). However, this amendment is
effective only for claims filed on or after August 29, 2001.
In any event, since the Board herein grants reopening of the
claim, the applicability of that new regulation is not of
significance to this aspect of the present decision.
According to VA regulation, "new" evidence means existing
evidence not previously submitted to agency decision makers.
"Material" evidence means existing evidence that, by itself
or when considered with previous evidence of record, related
to an unestablished fact necessary to substantiate the claim.
38 C.F.R. § 3.156(a) (2006). New and material evidence
cannot be cumulative or redundant. Id. Furthermore, the
U.S. Court of Appeals for the Federal Circuit has indicated
that evidence may be considered new and material if it
contributes "to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability,
even where it will not eventually convince the Board to alter
its ratings decision." Hodge v. West, 115 F.3d 1356, 1363
(Fed. Cir. 1998).
Furthermore, the U.S. Court of Appeals for Veterans Claims
(Court) has stated that, in determining whether the evidence
is new and material, the credibility of the newly presented
evidence is to be presumed. See Kutscherousky v. West,
12 Vet. App. 369, 371 (1999) (per curiam) (holding that the
"presumption of credibility" doctrine, as articulated in
Evans v. Brown, 9 Vet. App. 273 (1996), was not altered by
the ruling in Hodge, and continues to be binding precedent).
The Board is required to give consideration to all of the
evidence received since the last disallowance of this claim
on any basis, which means, in this case, since the August
1999 decision. See Hickson v. West, 12 Vet. App. 247, 251
(1999).
Governing law provides that DIC or death pension benefits may
be paid to the surviving spouse of a veteran if certain
requirements are met. 38 U.S.C.A. §§ 1304, 1310, 1311, 1318,
1541.
A "surviving spouse" is defined as a person of the opposite
sex who was the spouse of a veteran at the time of the
veteran's death, and who lived with the veteran continuously
from the date of marriage to the date of the veteran's death
(except where there was a separation which was due to the
misconduct of, or procured by, the veteran without the fault
of the spouse) and who has not remarried or (in cases not
involving remarriage) has not since the death of the veteran
lived with another person and held himself or herself out
openly to the public to be the spouse of such other person.
38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50.
The requirement that there must be continuous cohabitation
from the date of marriage to the date of death of the veteran
will be considered as having been met when the evidence shows
that any separation was due to the misconduct of, or procured
by, the veteran without the fault of the surviving spouse.
Temporary separations which ordinarily occur, including those
caused for the time being through fault of either party, will
not break the continuity of the cohabitation. 38 C.F.R. §
3.53(a).
The statement of the surviving spouse as to the reason for
the separation will be accepted in the absence of
contradictory information. If the evidence establishes that
the separation was by mutual consent and that the parties
lived apart for purposes of convenience, health, business, or
any other reason which did not show an intent on the part of
the surviving spouse to desert the veteran, the continuity of
the cohabitation will not be considered as having been
broken. State laws will not control in determining questions
of desertion; however, due weight will be given to findings
of fact in court decisions made during the life of the
veteran on issues subsequently involved in the application of
this section. 38 C.F.R. § 3.53(b).
The Court has determined that 38 U.S.C.A. §101(3) and 38
C.F.R. § 3.50(b)(1) set forth a two-part test to determine
whether a spouse will be deemed to have continuously
cohabited with the veteran when there has been a separation.
Not only must the spouse be free of fault at the time of the
separation, but it must be found that the separation "was
due to the misconduct of, or procured by, the veteran." In
assessing the reasons for a separation between a veteran and
his or her spouse, fault or the absence of fault is to be
determined based on an analysis of conduct at the time of the
separation. Gregory v. Brown, 5 Vet. App. 108, 112 (1993).
II. New and Material Evidence
The RO denied the appellant's claim for death benefits in
August 1999 on the basis that she was not recognized as the
veteran's widow for VA purposes because the requirement of
continuous cohabitation had not been met.
Very briefly, the undisputed facts on file at the time of
that decision were that the veteran and appellant were
married in April 1958 and that no divorce was ever obtained
from that marriage. The marriage certificate is of record,
as is the fact that six children were subsequently born of
that relationship. The appellant has repeatedly admitted
that she and the veteran had separated on multiple occasions
and, according to evidence on file, clearly ceased to
cohabitate at least by 1983, if not earlier. The evidence
does not show that the appellant was at fault in the
separation, or that the separation was procured by the
veteran or due to his misconduct. Therefore, any "new"
evidence would have to show that their failure to live
together was for the purposes of convenience, health,
business, or other reasons which did not show an intent on
the part of the appellant to desert the veteran.
Evidence received since the August 1999 RO decision includes
various written statements submitted by the appellant in
advancing her claim. She has stated that the family lived in
poverty as a result of the veteran's poor health and
inability to work. She also stated that they lived together
throughout most of their marriage, but due to housing
problems and her mother's sickness she left to go home and
take care of her parents before they passed away. She
asserts that, although there were times she and the veteran
lived apart, they did not divorce, and essentially their
separation was by mutual consent and due to illness and/or
convenience.
Without engaging in a long discussion of the specifics of the
evidence, the Board finds that the evidence submitted since
the August 1999 RO decision, is new, in the sense that it was
not of record when the RO denied the claim. Also, in view of
the less stringent standard for materiality set forth in
Hodge, it is also material because it addresses one of the
fundamental requirements for the specific matter under
consideration - namely, whether the appellant can be
established as the surviving spouse of the veteran for VA
benefits purposes (see Brammer v. Derwinski, 3 Vet. App. 223,
225 (1992)) - which overcomes one of the reasons the RO
previously denied the claim. In this case, the appellant's
assertions at the very least (assuming her credibility),
represent the initial evidence in the claims file that their
failure to live together was for the purposes of convenience,
health, business, or other reasons which did not show an
intent on the part of the appellant to desert the veteran.
Although much of the appellant's contentions may be
considered self-serving, the credibility of the evidence is
presumed for the purpose of reopening.
III. Merits Determination
With the reopening of the claim, the Board can consider the
merits of the claim.
As noted previously, the veteran and appellant were married
in April 1958, and no divorce was ever obtained from that
marriage. The marriage certificate is of record, as is the
fact that six children were subsequently born of that
relationship. The evidence also shows the veteran was in
receipt of VA compensation benefits.
In June 1971 the appellant submitted a statement indicating
that she had to leave their home because the veteran had lost
his job. At that time the veteran was living in Louisiana
and the appellant and their children were living in a one-
room house with her mother in Alabama.
A January 1979 VA examination report shows the veteran
indicated that his relationship with his wife was as it
always had been, and denied any serious problems in that
area. In April 1979, he submitted a VA Form 21-686c
(Declaration of Marital Status) indicating that he and the
appellant were married, but currently not living together for
the sake of "convenience", and that there were "no
problems with [the] marriage." He submitted another VA Form
21-686c in June 1979, indicating that he was currently
married to the appellant and that they were living together
in Louisiana.
In an August 1979 statement, the appellant indicated that she
was currently residing with her mother in Alabama. She
reported that they "were suppose to go back together but
decided not to." VA treatment records dated in 1980 include
a March 1980 entry which shows the veteran was ambivalent
about reconciling his marriage, but planned to continue
supporting his children. In a statement from the appellant
dated in November 1983, she inquired about having the
veteran's benefits apportioned for their children. A VA Form
21-686c was received by the RO in December 1983, indicating
that the veteran and the appellant were separated and that
the children were in her custody.
In the veteran's April 1987 Income-Net Worth and Employment
Statement, he did not indicate he was separated from the
appellant, and requested additional benefits on the basis of
his marriage to the appellant and for his youngest child.
An April 1988 VA medical record shows the veteran was living
with his sister. He also indicated that he had lived with
his wife for 23 years, but they had separated two years
before. In a September 1988 Income-Net Worth and Employment
Statement, the veteran indicated his marital status as
"divorced".
In April 1991, the appellant submitted a request for an
apportionment of the veteran's compensation benefits for
herself and their youngest child. In a subsequent statement
dated in July 1991 during the pendency of that claim, she
indicated that she had tried to live with the veteran but
that it was an "impossible case." In a later statement in
September 1992, the appellant indicated that she had asked
the veteran to reconcile but he refused. She then indicated
that she did not want to reconcile either, but just wanted
him to provide a home for their daughter. She stated that
the veteran had always been brutal to his family, and had a
terrible drinking problem.
By a decision of the Board in March 1994, the appellant was
awarded an apportioned share of the veteran's compensation
benefits. At that time the veteran was in receipt of
compensation at the 10 percent rate, and approximately half
was apportioned to his wife, the appellant in that matter and
herein.
In an April 1995 Income-Net Worth and Employment Statement,
the veteran indicated his marital status as separated since
1982. He indicated the reason for the separation was the
appellant moving to Alabama and leaving him behind.
The veteran died in December 1995. His death certificate
lists the appellant as the surviving spouse. However, the
application for VA burial benefits contains the veteran's
daughter's signature authorizing the funeral services.
In May 1996, the appellant made application for VA benefits
as the veteran's surviving spouse. She indicated that she
had not been living with him at the time of his death in
1995, due to illness. By rating action and transmittal
letter in September 1996, the RO denied the appellant's claim
for service connection for the cause of the veteran's death,
and also denied death pension on the basis that the
appellant's annual income exceeded the limit set by law. She
was advised of her right to appeal within one year, and did
not initiate an appeal.
In an April 1999 letter, the RO advised the appellant to
clarify the contradictions in her previous statements as to
why she and the veteran had been separated.
In response, the appellant explained that she and the veteran
had multiple problems, and that she had lived with him as
long as he could pay rent. She further explained that his
unemployment had caused constant hardship. She indicated
that on one occasion she had separated from the veteran to
attend to her sick mother, and that other separations were
due to the veteran's numerous operations and because he did
not receive his pension. She said that, as a result, she had
to go home to her mother and obtain welfare. She stated that
she would travel back and forth to visit him and, when times
were good, they lived together. She said the veteran never
wanted a divorce, and would visit her and the children every
summer. She also stated that the veteran had plans to buy a
home once he received his pension. She indicated that the
veteran did all he could at the time to support his children,
but that his first job was not enough to support the family.
Additional evidence of record includes various written
statements submitted by the appellant in advancing her claim.
She essentially argues that, although there were times she
and the veteran lived apart, they did not divorce, and
essentially their separation was by mutual consent and due to
illness and/or convenience.
Based on the foregoing evidence, the Board finds that
although the appellant was legally married to the veteran at
the time of his death, they were separated and had not lived
together continuously from the date of marriage to the date
of the veteran's death. However, the matter does not end
here.
As for whether the separation was due to misconduct or
procured by the veteran without fault of the appellant, while
there is some evidence of extreme financial hardship due to
the veteran's chronic unemployment, the appellant also stated
that at least on one occasion the separation was by mutual
consent due to the fact that she had to return to Alabama to
care for her sick mother. The statement of the surviving
spouse as to the reason for the separation will be accepted
in the absence of contradictory information. Her conduct
therefore, at the time of the separation, did not evince
fault on her part. Gregory v. Brown, supra at 108 (1993).
Therefore, the Board finds that the separation was without
fault of the appellant, and the separation was by mutual
consent.
As the veteran and the appellant were separated by mutual
consent due to both illness and convenience, the continuity
of the cohabitation will not be considered as having been
broken, for VA purposes, if there was no intent on the part
of the surviving spouse to desert the veteran.
Since the appellant and veteran separated by mutual consent,
any "intent on the part of the surviving spouse to desert
the veteran" must be shown by the conduct of the appellant
to desert the veteran. The evidence shows that the appellant
had apportioned the veteran's benefits, which is conduct
indicating some intent to abandon the marital relationship.
However, throughout the various periods of separation, the
appellant and veteran visited one another and the appellant
relied to some extent on the veteran for financial support.
The appellant neither remarried nor held herself out to the
married to another man.
Because of the approximate balance of positive and negative
evidence, which does not satisfactorily prove or disprove
intent on the part of the appellant to desert the veteran,
the appellant prevails with resolution of reasonable doubt in
her favor, and the appellant is recognized as the surviving
spouse of the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §
3.102.
IV. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in
part, at 38 C.F.R § 3.159, amended VA's duties to notify and
to assist a claimant in developing information and evidence
necessary to substantiate a claim. Because the appeal herein
is granted, the Board dispenses with the due process
requirement to ensure VCAA compliance on the issues of
reopening the claim and deciding the claim on the merits, as
the appellant can not be prejudiced by the grant of the
benefit sought.
During the pendency of this appeal, in March 2006, the Court
issued a decision in the consolidated appeal of Dingess v.
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA
notice requirements must include notice of how an effective
date for an award of the benefit sought would be assigned.
Although the VCAA notice in this case did not include any
provision addressing effective date, the Board finds no
prejudice to the appellant in proceeding in this matter
because the effective date to be assigned in this case has
yet to be determined by the RO, which will implement the
Board's decision, and the effective-date question is an
appealable issue should the appellant disagree with the
effect date assigned. Therefore, any notice deficiency with
respect to the effective-date question is harmless error.
ORDER
As new and material evidence has been submitted, the appeal
to reopen the claim for entitlement to death benefits as a
surviving spouse is reopened.
The appellant is entitled to recognition as the surviving
spouse of the veteran for the purpose of VA benefits; the
appeal is granted.
_______________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Important Notice: Attached to this decision is a VA Form
that provides information concerning your rights to appeal
our decision. Due to recent changes in the law, some of the
information contained in the attached notice of appellate
rights form is no longer accurate concerning the ability to
pay attorneys and agents to represent you. Some additional
information follows that summarizes the current law. To the
extent that the information contained in the attached VA Form
conflicts with the summary below, please disregard the
information on the VA Form and instead rely upon the
following information:
Do I have to pay an attorney or agent to represent me?
An attorney or agent may charge a fee to represent you
after a notice of disagreement has been filed with
respect to your case, provided that the notice of
disagreement was filed on or after June 20, 2007. See
Veterans Benefits, Health Care, and Information
Technology Act of 2006, Pub. L. No. 109-461, 120 Stat.
3403 (2006). If the notice of disagreement was filed
before June 20, 2007, an attorney or accredited agent
may charge fees for services, but only after the Board
first issues a final decision in the case, and only if
the agent or attorney is hired within one year of the
Board's decision.
The notice of disagreement limitation does not apply to
fees charged, allowed, or paid for services provided
with respect to proceedings before a court. VA cannot
pay the fees of your attorney or agent, with the
exception of payment of fees out of past-due benefits
awarded to you on the basis of your claim when provided
for in a fee agreement.
VA is in the process of amending its regulations
governing representation of claimants for veterans'
benefits in order to implement the provisions of the new
law. More information concerning the regulation changes
and related matters can be obtained at
http://www1.va.gov/OGC (click on "Accreditation and
Recognition of Service Organizations").
Fee for VA home and small business loan cases: An
attorney or agent may charge you a reasonable fee for
services involving a VA home loan or small business
loan. For more information, read section 5904, title
38, United States Code.
Filing of Fee Agreements: In all cases, a copy of any
fee agreement between you and an attorney or accredited
agent must be sent to the Secretary at the following
address:
Office of the Chief Counsel for Policy (01C3)
Board of Veterans' Appeals
810 Vermont Avenue, NW,
Washington, DC 20420
Facsimile: (202) 565-5643
(When final regulations are published to implement the
requirements of the new law, fee agreements must be
filed with the VA Office of the General Counsel and not
the Board.)
Department of Veterans Affairs